Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 262 - Arrangements for assessing etc risks posed by certain offenders

Graham Allen: I beg to move amendment No. 746, in
clause 262, page 145, line 28, leave out 'and'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 747, in 
clause 262, page 145, line 31, at end insert— 
 '(i) every Local Education Authority any part of whose area falls within the relevant area, and 
 (j) the leisure department of every local authority whose area falls within the relevant area.' 
No. 979, in 
clause 262, page 145, leave out lines 32 and 33.
 No. 999, in 
clause 262, page 145, line 32, leave out 'or removing'.

Graham Allen: It is a great joy, as always, Mr. Cran, to see you in the Chair.
 Amendments Nos. 746 and 747 were suggested to me by the National Society for the Prevention of Cruelty to Children. I hope that the Minister will respond to them sympathetically. Although the proposal to place an obligation on a range of authorities to co-operate in the assessment and management of sex offenders is welcome, the amendments seek to ensure that the duty to co-operate is extended to include the education and leisure departments of every local authority. Those departments are ideally placed to safeguard children and assist in the management of sex offenders in the community, and they should not be excluded from the multi-agency public protection arrangements. 
 I hope that the Minister will consider these two minor amendments in the spirit in which they are put. If he cannot accept them today, perhaps he will give an undertaking to consider them and come up with something suitable for all parties.

Dominic Grieve: I should like to speak to amendment No. 979, which would leave out subsection (7). Subsection (6) lists the authorities and persons referred to in subsections (3) to (5) whose job is to establish arrangements for the purpose of assessing and managing the risks posed in their areas by released offenders.
 Subsection (7) provides that the Secretary of State can amend subsection (6) at will by 
''adding or removing any person or description of person''.
 If the Secretary of State can do that, why do we need subsection (6)? Frankly, if he can produce a list at any time and without any sort of approval process, why bother to set out in subsection (6) a list of those who have to establish such arrangements? On the other hand, if the Government propose that the list should be substantially fixed, the Minister needs to justify providing the Secretary of State with that power. The Committee could at least be confident that the power would not be used in a way that could lead to names or institutions being added to the list unjustifiably. It is a simple point.

Hilary Benn: The two sets of amendments fit together rather well, because my response to amendment No. 746 will illustrate that the power given under subsection (7), which the hon. Member for Beaconsfield (Mr. Grieve) wants removed, is a sensible power to have.
 First, the multi-agency public protection arrangements represent a step forward. The more that I have learned in the last nine months about the work that the agencies undertake, the more I have been impressed by the care and consideration that they give to the task of managing the risks presented to the public by violent and sexual offenders. It has been a sensible step forward. The co-operation between the police and the probation service has been outstanding in some cases. I recommend Committee members to meet those involved in their local MAPPAs, and to talk to them about the way in which they undertake the work. I have been very impressed by what I have seen. 
 My hon. Friend the Member for Nottingham, North (Mr. Allen) has suggested two other possible organisations to which the duty to incorporate might be extended. Although the Bill already includes some scope for involving education authorities, through the duty to incorporate on youth offending teams—of which, my hon. Friend will be only too well aware, education departments form part—there is merit in extending the scope to include education authorities in their own right. While they will not be routinely involved in the assessment and management of the risks posed by sexual and violent defenders, their professional contribution could occasionally be significant. If my hon. Friend will withdraw his amendment, I shall undertake to return to the matter on Report. 
 I am not, however, convinced in the same way about local authority leisure departments. If my hon. Friend is thinking of the requirement placed on some offenders not to go near a swimming pool or leisure centre, the powers already exist to ensure that that can form part of appropriate licence conditions. There is already close co-operation between the police and the probation service and those managing leisure facilities to ensure that they are made aware of such licence conditions and can exchange information; there does not need to be a statutory requirement. That brings me to the point made by the hon. Member for Beaconsfield. The order-making power is subject to the affirmative resolution process; the Secretary of 
 State cannot wake up one morning and decide to add a few people to the list. 
 Having seen the amendment tabled by my hon. Friend and agreed that there is a case in relation to education departments, I accept that, as we learn from the operation of MAPPAs, we might wish to add to the list. There might be structural or organisational changes to the names or functions of the bodies listed in subsection (6) that would make it sensible, in the interests of public protection, to have the power to amend the list or to add to it, other than by primary legislation. That is the reason for subsection (7). I hope that, given the safeguard of the affirmative order procedure, my hon. Friend will understand the need for it and will not press the amendment.

Graham Allen: Last Thursday, I took my daughter to the Mansfield water park, not far from the constituency of my hon. Friend the Member for Bassetlaw (John Mann). Families who were taking young children out to the pool were being warned by the lifeguards not to take photographs of their children swimming with mums and dads. It is sad that, with photographs now able to be taken by telephone as well as by camera, we are in that situation. That is one of the things that the NSPCC had in mind when it suggested the amendments. I know that the Minister feels strongly about the issue. He has given a full and helpful explanation as to where the Government are coming from, and I hope that he will continue a correspondence with the NSPCC to ensure that any loopholes are closed.

David Heath: This business about photographs is becoming a mania across the country. Public authorities are behaving in an extraordinary way. Someone has to get a grip and give clear guidance about what is appropriate in terms of regulation.

Graham Allen: It is indeed a sad state of affairs, but such attitudes are none the less prevalent at the moment. People are being cautious, sadly for good reason.

Dominic Grieve: This is not an issue over which guidance is required: it is an issue of common sense. There has been a tendency to stir up a climate of fear so much that rational thought processes have been thrown out of the window.

Graham Allen: Even down to any one of us now being loth to comfort a child who is in obvious distress, because of how that might be interpreted. We must all be extremely careful in those situations. With those remarks, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Humfrey Malins: Welcome back to the Chair, Mr. Cran.
 The Minister owes us a duty to say a little bit more about the background to the clause and how it will operate. I wish to pose questions on a number of issues 
 that I hope he will deal with when he winds up the debate on this important clause. 
 As I understand it, the clause says that the responsible authority for an area, which consists of the police, the probation service and the Minister, must set up a team of people to assess and manage the risks that certain offenders in their area pose. Life is full of teams: everywhere one looks in the criminal justice system there is a team involved, and the proposed team is one more. My immediate reaction is that there is potential for an increase in bureaucracy. Getting together no fewer than eight or 10 different groupings might be a bureaucratic nightmare. 
 Has the Minister given any thought to the likely cost involved to each of the services concerned? In Surrey and in the south-east, the probation service and the police are heavily punished by the Government's movement of money away from the south-east grant towards the north of the country, to help their friends there. We are suffering desperately in the south. Has the Minister assessed the impact on, for example, the Surrey police grant? What extra money is likely to be needed to pursue the exercise? Similarly, what extra costs and work will be involved for the probation service, the primary care trusts, and so on? Could the Minister comment on the important issues of extra bureaucracy, work and cost? 
 Could the Minister also tell us what will happen in practice? Even after First and Second Reading, I am still not entirely clear on what will happen, and I am not sure what an area is. Subsection (2) refers to ''each area'', but in subsection (5) there is reference to a ''relevant area''. For the purpose of setting up the groups, is an area a county, a borough or a district? In my constituency, will the area covered be by reference to Woking borough council or to the county of Surrey? If the answer is the latter, the chief constable is presumably the officer responsible. However, if the relevant area is a borough, will that person be the commander of the borough? 
 Could the Minister also tell us what will happen in practice? A lot of people, from the ''youth offending team'' in subsection (6)(a) to everyone else 
''who is designated by the Secretary of State''—
 that is to say, anybody in the whole world—will presumably have to get together. However, the clause does not tell us much more. What will those people do when they get together? I searched diligently to find out, and a later clause tells us that they will have to prepare an annual report. Well, I'll be damned—an annual report. But what does that mean? I assume that the Minister will show me a report. Will those people draw up a list of offenders? Will they have executive power over them? What powers and duties will lie on them? 
 As you will have spotted, Mr. Cran, a later clause makes it clear that those deemed to be violent offenders will include persons who are convicted of an offence under schedule 11, which we debated some weeks ago, and those who are sentenced to more than 12 months' imprisonment. We shall come later to an amendment that I have tabled on the issue, but does the Minister have any concept of how many people in 
 Surrey, for example, have been given a sentence of more than 12 months? That is the standard sentence for the least serious violent offences nowadays. Someone who thumps their partner and goes before Guildford Crown court will be inside for 12 months. Similarly, someone who is involved in a minor brawl outside a pub in Surrey might well get 12 months. That is the bottom end of the market. 
 Will there be a register of such people? A huge number of people, including anyone who gets more than 12 months, may have to be monitored, taken care of and, in other ways, cajoled by the groups specified in the clause. I therefore have a series of specific questions for the Minister, and I should be grateful if he would write to me about them. How many people received a 12-month sentence from any court in each of the Surrey boroughs last year? How many received such a sentence in the county of Surrey? How many people received one nationally? 
 I am concerned about the volume of people who commit one-off, downmarket offences and who should not be on a register, but who find themselves being monitored by a large number of people because they are assessed as being violent offenders. The general public's understanding is that such people are not a danger to them, and the clause is, surely to goodness, meant to cover those who are a serious danger, such as serial violent offenders. They constitute a much smaller group than that envisaged in the clause, which includes everyone who is sentenced to more than 12 months. What will the bodies specified in the clause actually do? What will their powers be? What benefits will they bring to the community that they serve? 
 I notice that the Secretary of State can specify anyone he likes. Has the Minister thought about whether to include people from the world of education, such as county education group or officers? There are people in education departments who are familiar with the incidence of violence among young people. I suppose that the Minister thinks that the clause is a brilliant one, which will make a difference to the world, and I should like to hear why he thinks so.

Hilary Benn: My first response to the hon. Gentleman is, why read the clause when we can read the book? As I am sure he is aware, the clause re-enacts, with amendments, provisions in the Criminal Justice and Court Services Act 2000, which made arrangements for the establishment of multi-agency public protection arrangements. I use the phrase ''read the book'' because they have been in existence now for nearly two years. The document that I waved during the course of the hon. Gentleman's remarks, although I did not want to put him off his stride, was the first annual report of the MAPPAs. The national report, which describes how the arrangements work, and the local reports, covering each of the 42 areas, were placed in the Library. To answer the hon. Gentleman's first question, those are police and prevention areas—they are coterminous.
 The clause re-enacts what has already been provided for and is already working. In responding to the debate on the amendments, I urged hon. Members to go to see the work in practice. That is the best answer to the hon. Gentleman's questions. If he gets the chance to talk to the people who are now making the arrangements work, I think that he will be greatly reassured on some of his concerns about potential bureaucracy. The provision is not about bureaucracy. 
 I recently attended a meeting with the Bedfordshire probation service. Around the table were representatives of the police, the probation service and people who work with victims. We went through three case studies of offenders whom they had been supervising under the MAPPA arrangements. That had nothing to do with bureaucracy and everything to do with practical ways of preventing further distress to the victims from the offender's subsequent actions, and minimising the risk from the offender to those victims and the public. I believe the approach to be a step forward, and I believe that it is working. It has not created the difficulties that worry the hon. Gentleman. However, he need not take my word for it, but can visit the local team. I am sure that they would be delighted to see him or any members of the Committee. 
 I agree with the hon. Gentleman's point about education involvement. That is why in debating the amendment I said that I thought it would be sensible for education authorities to be added to the list in subsection (6), and undertook to return to the issue on Report. The clause, in essence, provides that the principal authorities would be the police, the probation service and the Prison Service. Co-operation and communication between those three agencies is vital to enable the arrangements to work. However, the organisations and bodies listed in subsection (6) should have a duty to co-operate. The nature of that co-operation will depend on the offender with whom the MAPPA is working.

David Heath: Perhaps the Minister can settle a point in my mind. I am sure that the arrangements work well practically, but I see nothing in the provisions to relate an individual offender to an individual responsible authority, whether that is defined by a court disposal, a place of residence or some other means. I am sure that I am missing an obvious point, but I cannot see how that is dealt with.

Hilary Benn: We shall come in a moment, in clause 264, to the range of persons who fall within the remit of clause 262. As to residence, in practice the MAPPA will be responsible for the people residing in its area. That is precisely why the duty of responsibility for overseeing the arrangements now extends to the Prison Service—which is not the case under the Criminal Justice and Court Services Act 2000—precisely because a person may be in a prison in one part of the country, but he may be returning to a local community located elsewhere. It is important that the Prison Service communicates effectively with the local MAPPA, once it is known where that prisoner, having been released, is due to reside, and ensures that all the relevant information that the prison has on that
 person is passed to the MAPPA to aid it in its supervision.

David Heath: I do not want to labour this point, but I still do not see the point at which a person is identified as the responsibility of a relevant authority for that purpose. Moreover, that person may reside in one area but have a sphere of activity in another: if he lived in Frome, for instance, and spent his time hanging round Warminster in Wiltshire, what are the arrangements to ensure that all relevant authorities are both aware and have an involvement in the management of the case?

Hilary Benn: That is a fair point. If someone crosses an area boundary, it is for the MAPPAs in the two areas in which that person is living, working or associating to co-operate to ensure that the arrangements in place to manage the risk that such persons present work effectively. I repeat that it is a practical arrangement directed at managing those who present a risk. Which people will come within its purview? As the Committee will see when we come to clause 264, they are persons who have committed a schedule 11 offence and have been subject to one of the penalties specified in clause 264(3).
 In practice, the MAPPA grades all those who come within its responsibility. There are what are described as the critical few, that is, the highest risk, seriously dangerous, sexual and violent offenders, with whom enormous care will be taken by the MAPPA. There are those who are regarded as medium to high risk. Finally, the vast bulk will be managed by the ordinary supervision—for example, for probationers, the supervision to which they would be subject in any case. The arrangements allow the MAPPA to make a judgment based on the knowledge and information held about individuals in the interests of public protection. 
 If the figures are available, I undertake to reply to the hon. Member for Woking (Mr. Malins) about Surrey. I hope that I have been able to offer the Committee some reassurance and I recommend hon. Members to read the annual report describing how the arrangements are working overall, and the area report for their own area. I believe that the arrangements that are already in statute and operating, which are amended in the clause in the way that I have described, represent a practical step forward for public protection. We still have things to learn, and the recent inspection report of the MAPPAs showed that there were issues that needed to be addressed. The interpretation of risk differs from area to area, and that is one of the things that the inspector said needed to be addressed. The arrangements are a step forward compared with what we had before. We need to build on what we have done, and I hope that the Committee will agree to the clause. 
 Question put and agreed to. 
 Clause 262 ordered to stand part of the Bill.

Clause 263 - Review of arrangements

Dominic Grieve: I beg to move amendment No. 980, in
clause 263, page 146, leave out lines 9 and 10.
 This is a probing amendment to ask the Minister to explain how the appointment of lay advisers works—I assume that such a system has been working under the existing scheme—and how they drawn from the community and identified. It is an extremely satisfactory idea, but as we are about to put it into statutory form, it would be useful to establish the role that they play and how they are identified.

Humfrey Malins: I have one query about the lay advisers. No doubt they already exist, and I do not want to fall into the trap of being referred to a previous book, which I should have read. Does the Minister know what fees might be paid to them? Is it just a matter of expenses or will there be a rate equivalent, for example, to that for a recorder or assistant recorder? Will it be a daily or an annual rate? What will be the extent of their commitment in days or weeks per year, and what will be the total burden on the public purse?

Hilary Benn: I am grateful to the hon. Member for Beaconsfield for having tabled the amendment, because it gives me the opportunity to describe the background. The aim of the clause is to enhance public understanding of, and confidence in, the arrangements that we have been debating. It arose from the discussions that my right hon. Friend the Home Secretary had with the parents of Sarah Payne at a time when, hon. Members will remember, there was a vigorous campaign for the introduction of Sarah's law, a crusade to reveal the identity and whereabouts of all sexual offenders. Having given the matter very careful consideration, the Home Secretary came to the view that that would not help us to protect children. That is the argument. All the evidence shows that if Sarah's law were to exist, it would drive sex offenders underground. If sex offenders are underground and change addresses, the people charged under these clauses with managing the risk that they pose will have a much more difficult task, and that will not help us to protect children.
 However, we recognise that there is a need for greater public understanding of and confidence in the measures that we have in place. We have, therefore, developed the idea of appointing two lay members to MAPPAs to take part in strategic management boards. The hon. Gentleman is right that in eight pilot areas—Dorset, Hampshire, Surrey, Greater Manchester, Durham, Cumbria, South Wales and West Midlands—we advertised for people to put themselves forward. A rigorous selection system was established to ensure that the people who were appointed had the skills that could contribute to the posts. They took up their positions this month, following a training programme. It is still early days, but the pilot arrangements are being formally evaluated by Manchester university and that evaluation will help us to implement the Bill. The lay advisers will be paid expenses and, where necessary, reimbursed for loss of earnings. I hope that that is of assistance. 
 The same principle applies here as in other instances of oversight of public administration in which lay members are involved. They will bring a perspective 
 that professionals might not have. Their job will not be to decide what the licence conditions are in each case. That is why they will take part in the strategic management board that will, generally, meet quarterly. Working with others who form the MAPPA, they will satisfy themselves that effective arrangements are in place in the area for managing the risks that might be posed.

David Heath: It occurs to me that if the intention is to provide not only an input into the process but a reassurance to the community, we should recognise that there is a great difference between, for instance, the Greater Manchester police and the City of London police, in terms of work loads and the communities that the advisers will represent. There are huge geographical areas and different communities in some police authority areas. In Avon and Somerset, inner-city Bristol is rather different from Exmoor in terms of the communities that are represented. In some cases there will be a congregation of offenders, simply because of the location of institutions. I am thinking, for instance, of the Isle of Wight in the context of Hampshire. I worry that we are giving the lay people in some areas the impossible task of adequately representing those communities, if indeed they are held to have a representative function.

James Cran: I did not interrupt, because the point was important, but that was more a speech than an intervention.

Hilary Benn: Thank you, Mr. Cran. The hon. Gentleman is right to say that the sizes of the populations covered by the different areas vary greatly, Greater London being the largest area. However, that is not relevant to the general principle that the clause establishes. The two lay advisers do not manage the total case load, but satisfy themselves, working with police, the probation service, prisons and others, that effective arrangements are in place. The concept of representative capacity is interesting. The lay advisers are there in one sense on behalf of the community of the area, to say, ''We are two lay people. We are not professionals involved in the management of these risks, but we have been asked to undertake this role in order to bring the background, experience and skills that we have.'' In the same way, we ask lay people to do such things in relation to the magistracy, training, school governing bodies and lots of other functions in society. I believe strongly that this is a positive step forward, because lay people can bring an invaluable range of skills, knowledge and experience to the arrangements and ask questions that might not necessarily be asked by the other professionals around the table.
 The step proposed is modest and came out of the circumstances surrounding the tragedy of the Sarah Payne case. I think that it was the right response to that case. The wrong response would have been to make names available, which, for the reasons that I gave, would not help us to protect children. We want to reflect on how the proposal goes, which is why we are piloting it in eight areas. The people have only just begun and have not even been in post for a month yet. I hope that when we have a chance we shall see from 
 the evaluation that the process works successfully. We shall then be able to extend the provision of lay advisers to all the areas, for the reasons that I have tried to argue.

Dominic Grieve: I am grateful to the Minister. This has been an interesting short debate on an important topic. There is a slight anxiety—I detected it in the Minister's response—about the extent to which lay people can be seen as representative of the community. One of the reasons for putting them there was undoubtedly the response to the Sarah Payne case. It has always been my view that if lay people are to make an impact and scrutinise the activities of professionals, they must have considerable skills of their own, drawn from their activities or background. Otherwise there is a serious danger of what used to be the case with school governors—I think that it is no longer the case—whose role in many state schools was to be little more than a rubber stamp for decisions taken by others. I am thinking back 15 or 20 years, when I was a school governor of inner London schools. I thought that the role of governors was largely decorative and that they had no real impact on the school environment at all. That was in the days of the Inner London Education Authority.
 I have the same slight anxiety in the present case, and look forward to having a bit more detail about the lay membership of the bodies in question. It would be useful in due course to know a little more about the backgrounds of the lay members and what expertise they will contribute. If that information can be made available, it would be helpful. 
 I thank the Minister for explaining how the arrangements are working at present and I hope that they succeed. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 263 ordered to stand part of the Bill.

Clause 264 - Section 262: interpretation

David Heath: I beg to move amendment No. 936, in
clause 264, page 146, line 29, leave out 
 'an offence specified in Schedule 11' 
 and insert 'a serious violent offence'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 1001, in 
clause 264, page 146, line 33, leave out '12 months' and insert '3 years'.
 No. 981, in 
clause 264, page 146, leave out lines 34 and 35. 
No. 1000, in 
clause 264, page 146, line 35, leave out '12 months' and insert '3 years'. 
No. 982, in 
clause 264, page 146, leave out lines 42 and 43.

David Heath: I do not intend to repeat our earlier debate on schedule 11, other than to say that the range of offences that it covers is extremely wide. The hon.
 Member for Woking said that, as a starting point, the threshold is fairly low. It is clear that there needs to be consistent and proper management of people who pose a real risk to the community. It is not a supportable contention that all people convicted of offences listed under schedule 11 and who have received a sentence of 12 months or more are likely to pose a genuine risk to the community. This debate is an extension to the argument that has already been advanced, and as such may be considered to be redundant, given that we have lost that argument to the Minister. The mechanism should identify the most serious offenders and not spread the net so wide as to clog up the system with many people who have nothing to do with the safeguards inherent in the Bill.

Humfrey Malins: Amendments Nos. 1000, 1001, 981 and 982 are no more than probing amendments, so we will not push them to a Division. They relate to the issue raised by the hon. Member for Somerton and Frome (Mr. Heath) about the threshold that one has to cross to be part of clauses 262 to 264. My judgment is that the persons who should be subject to those provisions should be those who pose a genuine threat to the community in which they live and perhaps work. The more persons in the group, the less attention can be paid to each of them individually.
 We should ask which group of people pose a threat to our community and which the community needs to monitor, hence amendment No. 1001, which would mean that the provisions applied to those sentenced to three years or more, rather than only 12 months. I could have equally proposed periods of five years or two years, but I am sure that the Minister will understand those of us who argue that we must monitor serious offenders. Naturally, our instinct is that serious sexual offenders must be monitored by the community and the clause may do a good job in that regard. We feel the same about people who constantly, or even on a one-off occasion, are very violent. As I mentioned in passing in a previous debate, there is a great width to group of people affected, as it includes all those who serve a sentence of 12 months or more. The Minister knows—and I will not repeat this ad nauseam—that the courts pass 12-month sentences a great deal of the time. 
 A three-year sentence, on the other hand, is serious. People do not get three years unless they have done something very serious indeed. It is the sort of penalty that might be given for a charge of malicious wounding with intent under section 18, or of grievous bodily harm under section 20: that is to say, really serious bodily harm, either caused intentionally or with a slightly different standard of intent. 
 Actual bodily harm, which is less serious, is an offence in the schedule. In my experience, actual bodily harm is regularly a one-off offence that may be committed within a family or under the influence of drink, and may not happen again. It is not linked in my mind with people who commit serial violence. There is an argument for keeping this to the more serious sentences of three years. 
 Can the Minister outline what happens in practice to a typical offender? For example, someone is convicted of actual bodily harm in a Crown court and is sentenced to 14 months' imprisonment. The Judge tells him that if he had pleaded guilty he would have got eight, which is the normal discount. He serves a term of imprisonment, but comes out on licence halfway through his sentence and is thereafter under the supervision of the probation service for the balance of his licence. What happens in practice when the mechanism under clauses 262 to 264 is applied? I float my amendment on the basis that we should save those cases for more serious offenders: a level of 12 months is too low.

Hilary Benn: I recognise the helpful and probing nature of these amendments: they raise an important point with which I hope to assist the Committee. MAPPAs put additional measures in place to ensure that those who are assessed as posing a high risk of serious harm to the public effectively receive extra attention and supervision: that is the principle.
 In order to ensure that MAPPAs operate effectively, the net is cast in the way described in the clause. All offenders convicted of a sexual or violent offence who have been sentenced to 12 months' imprisonment or more fall within the potential scope of a multi-agency public protection arrangement. In practice, only a few are formally referred to, and then considered for, MAPPAs, because of the sifting process that I described in an earlier debate. 
 The bulk of offenders, including those of the type described by the hon. Member for Woking, will be managed by the ordinary supervision arrangements. That would be the case in the particular example that he gave. However, there may be aspects of an offender's background or history that would give rise to concern that they presented a higher risk. That is the purpose of having this trigger which depends on their background or circumstance. For instance, they may have committed some quite serious offences abroad, come to this country and then appeared before the hon. Gentleman for the kind of hypothetical offence that he described. That is why subsection (2)(b), which we have already discussed and agreed, refers to 
''other persons who, by reason of offences committed by them (wherever committed) are considered by the responsible authority to be persons who may cause serious harm to the public.''
 That casts the net widely. Indeed, it would cover an offender who had committed serious offences abroad before coming to this country. Information about such offences would be brought to the attention of the police and the clause would enable such people to be brought within the scope of the arrangements. 
 In the main, offenders would be managed on licence after their release from custody. There may be people who are no longer serving a sentence but who are assessed as persons who may cause serious harm to the public because of the offences that they committed. Although that second category of offenders could be quite broad, the police and the National Probation Service work on the basis that it comprises people who 
 present a risk of harm which is life-threatening, traumatic, or from which recovery, whether physical or psychological, could be expected to be difficult or impossible. 
 That provides a tight test that would address what the hon. Gentleman said about the level of risk that is presented to the public. Most of the relevant offenders are likely to have committed serious sexual or violent offences prior to the introduction of the 2000 Act, which established the arrangements regarding the National Association for the Care and Resettlement of Offenders. Those offenders will include some mentally disordered offenders and people from overseas who have the right of residence in the UK.

Dominic Grieve: Clause 262(2)(b) must, through its wording, allow any offender—for example, someone who has committed the most minor offence in this country—to fall within the ambit of the MAPPA if that is thought to be necessary. It certainly does not confine the definition to an offence that was committed abroad. In some ways, that wording makes the wording of subsection (2)(a) unnecessary.

Hilary Benn: The honest answer is that this is a belt-and-braces provision, and the hon. Gentleman has identified the reason. The purpose of the provision is to try to manage risk, so it seems sensible to draw the net widely in order to give the MAPPA the power that it needs to supervise and oversee individuals who might present a real danger to the public. The MAPPA would apply the sifting process that I described so that we do not end up with the impossible burden about which the hon. Member for Woking was concerned. The provision will enable the MAPPA to focus most of its efforts on those who present the greatest risk.

Humfrey Malins: The Minister's reply is helpful. Does he say that everyone who gets a 12-month sentence should have their cases considered by that group of people? Does he think that the volume of cases will be heavy, and might it not be substantially reduced if the three-year sentence were substituted for the 12-month sentence? It is a question of the burden.

Hilary Benn: I am conscious of that point. One of the most helpful developments is that the probation service is being enabled to manage the risk. These are indicators. The purpose of schedule 11 is to indicate a range of offences and the purpose of the 12-month trigger would offer, in part, a response to the argument that the hon. Gentleman made, although I recognise that it could be argued that that period could be greater or less. That is also the reason for clause 262(2)(b), which casts the net. The probation service will assess the risk that is posed by the offender.
 OASys, which we discussed in a previous sitting, is the new risk assessment tool developed by the probation service. The OASys assessment of an offender will play an important part in future in determining the degree of perceived risk and whether an individual should be placed formally within the purview of the MAPPA or whether they could be managed under the normal licence arrangements. 
 There is an issue about greater consistency in the application of that assessment, and I referred to that when I talked about the inspectorate assessment of 
 MAPPAs. The largest issue that the inspectors identified was that different MAPPAs were undertaking the assessment in different ways. That is not surprising because the arrangements are relatively new and people are feeling their way, learning and trying to ensure that they carry out their responsibilities in the most effective way possible. OASys will assist enormously in making the assessment and identifying risk, and after going through the sifting process, the very small number—the critical few—of highly dangerous offenders to whom the MAPPAs will pay most attention will be identified. The high and medium risk group will be managed in several ways and the vast bulk will be dealt with through normal supervision arrangements. That is the sensible way in which to deal with potentially very large numbers in a way that the MAPPA can manage, which was the point made by the hon. Member for Woking.

David Heath: That was a helpful response, although I am still worried about the range of initial assessments. At the back of my mind, I have doubts about the arrangements as they pertain to a specific area rather than to an individual in the context of the whole country. I also have doubts about how the interlocking facets of MAPPA case management will work in practice.
 For example, I understand that a range of maritime offences is included. If a regular offender against shipping or navigation aids—this is a hypothetical case; I am using it only as an illustration—was normally resident in Derbyshire, he would pose no risk to that community. However, that person might make a day trip to the seaside. I am worried about communications, and we should not swamp the system with cases at a low level, because that would not allow for proper management and interchange of relevant information among areas. Such information should allow the proper management of people who are at high risk of causing serious harm to the wider community—wherever that is situated and including abroad, as was mentioned in a previous debate. 
 I am grateful to the Minister for his comments and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment made: No. 700, in 
clause 264, page 147, line 14, leave out from 'include' to end of line 15 and insert 
 'a service court, as defined by section 252(1)'.—[Hilary Benn.]
 Clause 264, as amended, ordered to stand part of the Bill. 
 Clause 35 ordered to stand part of the Bill.

Schedule 3 - Allocation of cases triable either way, and sending cases to the Crown Court etc

James Cran: I apologise to the Committee that the amendment paper was printed incorrectly. I apologise especially to Mr. Heath, because his and Mr. Hughes's amendments were omitted.

David Heath: I beg to move amendment No. 1002, in
schedule 3, page 159, line 35, leave out paragraph (a).

James Cran: With this it will be convenient to discuss the following amendments:
 No. 983, in 
schedule 3, page 160, line 19, leave out 'Great Britain' and insert 'the United Kingdom'.
 No. 984, in 
schedule 3, page 160, leave out lines 25 to 30.

David Heath: I am most grateful. I do not think that the omission was quite as discriminatory as was suggested, because several amendments tabled by the hon. Member for Beaconsfield were also omitted. It is a general downer on the Opposition, rather than discrimination against my excellent amendments.
 Amendment No. 1002 is designed to probe the Minister about why the provision for disclosure of previous convictions has been included at such a stage of proceedings. It is not clear to me that there is an immediate benefit; indeed, there is a potential disbenefit owing to the potential privileges on magistrates who consider cases. Why are previous convictions relevant in determining whether a case is tried as a summary offence or on indictment? I am not clear that they can be relevant. Obviously, the Minister thinks differently, and I want to give him the opportunity to say why. I shall perhaps respond when he has done so, as clearly there is some reason why he thinks that previous convictions should be considered by magistrates when determining the place of trial for an either way offence, although it is not immediately obvious.

Dominic Grieve: I find myself in disagreement with the hon. Gentleman on his amendment. If I have understood how schedule 3 is intended to work, it is axiomatic that the previous convictions of a defendant will be a relevant consideration in deciding where trial should take place. As I understand the principle behind the regime that we are setting up, normally—although there are some slightly odd exceptions, to which I shall refer under a later amendment—if a magistrates court, having tried a defendant, concluded that its powers of punishment were insufficient, it could commit that defendant to the Crown court for sentence. The new principle is that the magistrates court will not do that, and must decide where the trial will take place at the outset, helped by the prosecution. When a trial has taken place, a magistrates court cannot send the defendant to the Crown court.
 In such circumstances, it seems absolutely clear that the court must know about the previous convictions of a defendant when deciding on mode of trial, because unless it does so, it will not know whether there are offences of a kind that fall outside its jurisdiction in terms of the punishment that it can reasonably impose. Although I disagree with the hon. Member for Somerton and Frome on his amendment, there are some oddities in the wording of the schedule that I wanted to pick up with my amendments. 
 My amendment No. 983 concerns subsection (5)(a) of proposed new section 19 of the Magistrates' Courts Act 1980, which says that 
''any reference to a previous conviction is to be read as a reference to a previous conviction by a court in Great Britain''.
 I find that odd, because it excludes a conviction by a court in Northern Ireland. I cannot for the life of me think why we should use the expression ''Great Britain'', and why a defendant's conviction or series of convictions in Northern Ireland for, say, theft offences should not be taken into consideration if he comes to appear before a court in London for trial on a similar offence. The amendment would replace the words Great Britain with United Kingdom, which would include all the territorial jurisdictions within the United Kingdom. I should be glad to hear why the Minister thinks that the amendment should not be made, because I cannot think of a good reason. 
 My second amendment, No. 984, concerns subsection (5)(c) and conditional and absolute discharges. The inclusion of conditional and absolute discharges as a relevant previous conviction that magistrates courts should to take into account is bizarre. The principle of an absolute discharge is that although a person is technically guilty of an offence, he is morally blameless. I can only think of two or three occasions in my professional career when I have seen an absolute discharge given, but they are cases in which the point is that no moral blame should attach to the person concerned. Again, I cannot for the life of me think why absolute discharges should feature at all. 
 Conditional discharges are perhaps in a slightly different category, because such a discharge relates to a period of time, and provided that the person does not commit an offence during that period, the discharge effectively becomes absolute. There may be an argument that such a discharge is sometimes given in cases where a person is seen to be morally blameworthy but it is felt that no real action should be taken. That could be seen to be slightly different, but the principle set out in the Criminal Courts (Sentencing) Act 2000 is that they are not treated as previous convictions. I am a little concerned because, for reasons that I do not understand, the Government seem to have decided that they should be treated as previous convictions. Quite apart from anything else, and looking at the practical reality, I cannot see that they are relevant. How can a magistrates court, knowing that someone has an absolute discharge or a conditional discharge, do anything other than treat that person as of good character? If it does not, there will be complaints, and we shall end up with cases going to some sort of judicial review on the basis that there were no grounds on which a committal to the Crown court could properly be made. 
 I hope that the Minister can answer those two points. As I say, I am fairly persuaded that the point argued by the hon. Member for Somerton and Frome is not valid because I can see the reason for knowing about previous convictions, but some of the detail on which I have sought to probe does appear to be a bit odd.

Hilary Benn: The hon. Gentleman has largely done my job for me. I can therefore be mercifully brief. The argument that he advanced in opposition to the amendment moved by the hon. Member for Somerton and Frome was exactly right; it described perfectly the reason for the change. For that reason I, too, would resist the amendment. In order to make the new arrangements work successfully, it is necessary to ensure that magistrates have the power to make the appropriate sentence, and one must obviously have regard to previous convictions in doing so.
 Secondly, I am grateful to the hon. Member for Beaconsfield for pointing out the question of convictions by a court in the UK and not only in Great Britain. He is absolutely right. Indeed, there are one or two other places where we need finally to track down the relevant changes. I accept the spirit of his amendment, and shall return to it. On reflection, we shall also want to complete what I might describe as a realignment of the boundaries, by adding findings of guilt in service disciplinary proceedings and by removing the now redundant paragraph (b). 
 Finally, in answer to the last point raised by the hon. Member for Beaconsfield, I accept that in practice it is very unlikely to be relevant, but the justification for including conditional discharges is merely to reflect the sentencing provisions. I do not think that it will involve a great deal of harm. There might just be circumstances in which a conditional discharge was relevant and needed to be taken into account. I take the point made by the hon. Gentleman, but I do not think that we lose a great deal by including the provisions in order to cover that extremely unlikely eventuality. However, should it arise it would probably be more sensible to include the provisions than not.

David Heath: This is one of those odd situations when I find myself drawn to one of the hon. Member for Beaconsfield's amendments rather than mine. He is absolutely right about the absolute and conditional discharge. I hope that the Minister will reflect on that further. I find it difficult to think of circumstances in which that might be relevant to a court when considering a decision on committal—other than in a way that was inappropriate. Having heard the arguments on the other point, I happily beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 977, in
schedule 3, page 161, leave out lines 3 to 9.

James Cran: With this it will be convenient to discuss amendment No. 978, in
schedule 3, page 164, leave out lines 3 to 8.

Dominic Grieve: The principle that we were discussing a moment ago is that once the decision has been taken by the magistrates that trial should take place summarily, or that they would least accept jurisdiction, and provided that the defendant has consented to the acceptance of jurisdiction by the magistrates, they cannot change their mind subsequent to conviction. I had understood that the reasoning
 behind the proposal was to encourage people to be willing to be tried in the magistrates court. I was, therefore, puzzled when I saw that new section 20(2)(c), which concerns procedure where summary trial appears more suitable, says that
''in the case of a specified offence (within the meaning of section 204 of the Criminal Justice Act 2003) . . . if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 3A of the Powers of Criminal Courts (Sentencing) Act 2000 if the committing court is of such opinion as is mentioned in subsection (2) of that section.''
 That, effectively, says that in the case of the specified offences in section 204, the power of the magistrates to commit for sentence after trial would remain. That appears elsewhere. My next amendment, No. 978, would omit subsection (5)(b) of new section 24A, which deals with a child or young person indicating intention as to plea in certain cases. 
 Section 204 describes specified offences for dangerous offenders. It says: 
''An offence is a ''serious offence'' for the purposes of this Chapter if and only if it is a specified offence, and it is, apart from section 205, punishable in the case of a person aged 18 or over by imprisonment for life or imprisonment for a determinate period of ten years or more.''
 I am at a loss. Many of those offences are only going to be triable by indictment, so the issue of the magistrates having a discretion to commit does not arise. There might be one or two—I shall be interested to hear from the Minister what they are—that are either way offences. If they are either way, I simply do not see why the justices should not take the decision at the outset that is in conformity with the principles that the Minister is trying to establish in the whole of schedule 3. To allow those convicted of such offences to be still capable of being committed to the Crown court after conviction seems to negate the intention of the schedule completely. 
 I may have misunderstood what is intended. It is a difficult schedule to read, and it is difficult to make the various cross-references. Perhaps the Minister will tell me that I have the wrong end of the stick. However, if I have understood it correctly, it is a bit of a nonsense. Can the Minister tell me why the residual power has been retained when the purpose of schedule 3 was to prevent it from happening?

Humfrey Malins: I believe that my hon. Friend is on to a very good point. I should like to probe the Minister more generally. The aspect of the schedule that we are dealing with mentions a specified offence. Of course, such offences are dealt with in section 204 and again in schedule 11. Will the Minister clarify whether, by specified offence, we mean the entire list in part 1 of schedule 11—the 62 offences of violence, ranging from common assault to much more serious offences—or only those within that schedule that carry the sentence that my hon. Friend referred to? If it is the latter, I should be most intrigued to know whether the Minister thinks that nearly all of those offences are indictable only, so the issue would not arise. On my first reading of the provision, it seemed to me that the court had to go through a difficult exercise because the provision seemed to be establishing the power in relation to certain offences only.
 The court has a job to do when the defendant appears before it. It must undertake cross-checking or cross-referencing to ascertain whether the offence that the person is being tried for is part of the schedule. Is there committal for sentence simply because the offence is so serious that the powers of the court are not sufficient? That cannot be right because that would have been decided in the first place and the court would not have accepted jurisdiction. Is the court committing to the Crown court for sentence because of the defendant's previous record? I should like to know whether that is the case. The matter is not clear and, like my hon. Friend, I should appreciate an explanation.

Hilary Benn: The practical effect of amendment No. 977 would be to remove the requirement for the court to explain to an adult defendant offered summary trial under new section 20 of the Magistrates' Courts Act 1980 that, if he agrees to summary trial, he may nevertheless, if convicted, be sent to the Crown court for sentence under the dangerous offender provisions in new section 3A of the 2000 Act. Amendment No. 978 would do likewise when a juvenile defendant is asked to indicate a plea under the plea before venue procedure. New section 24A(5)(b) now requires a similar, though more extensive, warning to be given about the consequences of a guilty plea.
 The reason for such provisions is that, when a defendant is required to make a choice—in the one case between summary trial and trial on indictment and, in the other, between offering a guilty plea, a plea of not guilty, and no plea—he should be given as clear an idea as possible about the implications. Such offences are brought about by the dangerous offender sentence provisions, which are triable either way. It is possible that the need for such a sentence to be considered might be recognised only after the allocation decision is taken—hence the preservation for the offences in the circumstances of the power to commit for sentence. That being so, it is necessary for the position to be explained.

Humfrey Malins: Did the Minister say that it might only be possible to reach a conclusion about whether or not to commit after the trial, when certain matters became clearer? I simply do not know what that means. Perhaps the hon. Gentleman could explain it to me.

Hilary Benn: I shall repeat it—[Interruption.] Well, I said that it is possible that the need for such a sentence to be considered might be recognised only after the allocation decision was taken. That is why it is necessary to preserve it.

Dominic Grieve: I remain puzzled by the provisions. The purpose of schedule 3 and the White Paper, which ties in with the original intention, is to remove the process of committal for sentence after trial at the magistrates court. The reason for that was that it was thought undesirable that a situation should exist where a defendant, having been told that he could have trial at the magistrates court if he so wished, did not avail himself of that opportunity because he said to himself, ''Oh well, I will be committed for sentence anyway the
 moment that they hear about my antecedents afterwards.'' So the principle, which I wholly support, was that the court should hear about the antecedents and previous convictions beforehand, take a decision and be fixed with that decision. After all, with the prosecutor's involvement in the process, it could hardly be said subsequently that all the matters could not be brought before the court to allow it to take an informed decision at the outset. However, what we have is a system under which the court will now hear about previous convictions before trial; on top of that, the Government have chosen to preserve the power to commit to sentence after trial. I was totally unaware of that until I started to scrutinise the detail of schedule 3 last week.
 I am very unhappy because that choice goes against the Government's stated intention to simplify the procedure and to encourage people to be tried in the magistrates court. One of the Government's anxieties was that in the past there were far too many instances of people being committed to the Crown court for sentence only to receive there a sentence that would have been well within the tariff that the magistrates court could impose. One of the provisions of the Bill that I support completely is the extension of the sentencing powers of magistrates to reduce the clogging up of the Crown court. 
 I appreciate the Minister's point that the amendments would remove the need to warn a defendant beforehand that he could be committed. However, that relates to an Act of 2000 under the old system. It should no longer be necessary to provide such a warning because it should no longer be possible for a person to be committed to a Crown court after being convicted in a magistrates court. The magistrates should be required to take the decision on whether they accept jurisdiction at the outset. We could create a situation in which the defendant could argue that he has been misled or in which the intention to encourage people to be tried in magistrates courts is negated because the old regime will still apply. 
 As I think that the Minister acknowledged, I find it very difficult to think of instances when there will be either way offences that fall into clause 204's definition of specified offences and dangerous offenders. However, I recognise that there may be one or two. None the less, when magistrates first consider a case, they will be told something about the facts and the defendant's antecedents. They will be able to see that the offence is one for which a long sentence is likely and will decide whether the case must go to the Crown court. Nevertheless, the Government are anxious to retain that residual power, and they should not be allowed to for it goes completely against the intention in the White Paper on how the Government wanted to see magistrates court jurisdiction develop. 
 I should like the Minister to assure me that he will reconsider the matter; if he will not, I think that I will put it to the vote. It is an issue of principle, and I am unpersuaded by his argument that the Government must retain that power.

Humfrey Malins: I am completely confused, as, I believe, is the Minister about the purpose of this paragraph.
 Can he give me one example of when it would operate in practice?

Hilary Benn: Gladly. The truth is that this is a very narrow derogation from the principle in the Bill that a defendant tried summarily should be dealt with by the magistrates. There are two sets of circumstances in which it might arise. First, it might arise if, after a defendant pleads guilty and reports are ordered, it becomes apparent that a sentence as a dangerous offender is required. The second set of circumstances is that the defendant agrees to a summary trial, but facts emerge during the trial that show that a sentence for a specified offence is appropriate. Those two sets of circumstances are the reason for the narrow derogation from the broad principle.

Dominic Grieve: The second example given by the Minister is bad. If it were right, the intention behind schedule 3 must be wrong as a matter of principle, and we ought to retain the old system.

Humfrey Malins: I wonder whether my hon. Friend heard the first point of the Minister's argument, which was that the pre-sentence report might reveal factors that would encourage the court's change of mind. That surely is sentencing based on a pre-sentence report, not on the case before the court.

Dominic Grieve: Yes. I agree with my hon. Friend about that as well, and I was about to address the first point. I thought that the second one was so glaring because it went against the whole thrust of the previous argument advanced by the Government, but my hon. Friend is right that the first example given by the Minister is equally unsatisfactory. It should not be necessary for the sentencing report to guide the court. The intention behind schedule 3 is that the prosecutor could say to the court, ''This is a case where you can accept jurisdiction or not.'' The court would know about the previous convictions and be able to make an informed decision.
 I do not know where the civil service has been in all this, but up in the upper recesses or garrets of the Home Office, somebody got it into his head that he must not allow this power to slip away entirely. As a result, he wanted to keep it and tried to slip it into schedule 3 in such a way. That is not satisfactory. The Government must come up with a better explanation.

David Kidney: I am worried, too, but if we go back to clause 205 and dangerous offenders, which lays out how an extended sentence might come to be passed, it states that the court must be satisfied or
''of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''
 On most occasions, a magistrate deciding on jurisdiction by himself or in the Crown court might spot such people with the help of the Crown Prosecution Service, but is the hon. Gentleman really saying that he is certain that a magistrate would never miss it at that stage and that it would not arise later on in a trial or in a perusal of reports? The risk that would be taken is that some people would then not get the extended sentences that they should receive for the protection of the public.

Dominic Grieve: The hon. Gentleman makes—

Hilary Benn: A good point.

Dominic Grieve: It is a very good point—I accept that—but at the same time I think that it is slightly unreal. Let us suppose that a defendant is brought before the magistrates court who has a record, for instance, of frequent violence against other people, possibly of quite a low grade, but who is well known to the local police as, to put it bluntly, somebody who seems to have a pathological personality—very unpleasant and a constant worry to them.
 If the police are doing their job properly, they will pass that information to the prosecutor. The previous behaviour has been recorded in respect of the previous convictions of the defendant. Although they have attracted only short sentences, the prosecutor can say that, despite the sentences, he should point out the facts relating to the cases. The prosecutor could say that if the case goes to the Crown court, he may well apply for an extended sentence. That will be the end of it, will it not? The magistrates then say that the case must be committed to the Crown court for trial.

David Heath: It occurs to me that either the prosecution or the magistrates in certain cases would be guilty of astonishing dereliction if they allowed a case to be presented that proposed a genuine and serious risk of substantial harm to the community without presenting that information to the magistrates so that they took account of that in their initial assessment. That is really clutching at straws. I am inclined to agree with the hon. Gentleman that this is a spare part that the Home Office is determined to have in its Bill, just in case. I do not think that it is appropriate.

Dominic Grieve: I agree entirely with the hon. Gentleman. The anxiety is that for some reason that system will break down, but at least at the end of the trial somebody will realise that that is the case. At that point, somebody will be able to save the day by saying, ''Look, we have discovered all these terrible things about this defendant.'' The proposition advanced by the hon. Member for Stafford (Mr. Kidney) is unreal. If that is the cause of their anxiety, the Government should never have embarked on the schedule 3 procedure. On that basis, it would always be necessary to wait until the end of the summary trial for the magistrates to make the informed decision, based on the report, on whether to accept jurisdiction over anything.

David Kidney: The hon. Gentleman describes as unreal my proposition that sometimes events might unfold after the point of the election and the decision on jurisdiction. I would prefer to say that such instances are infrequent. If he accepts that they are infrequent, does that not mean that some people would not get the extended sentence that they should if he were successful in his opposition? That would be detrimental to the protection of the public. The hon. Member for Somerton and Frome says that such a case would be an example of bad performance by the Crown Prosecution Service, but I do not accept that that is the only reason why magistrates would not know. However, even if that were the reason, are we saying that the public cannot be protected because the CPS did a bad job one day?

Dominic Grieve: The hon. Gentleman makes the point again, but let us look at it another way. I can think of a number of examples in the course of my professional career in which the antecedents of a defendant proved to be incorrect. One has gone to court—Crown court—and the defendant has stood trial and been convicted and sentenced based upon antecedents that he has accepted, having lied to his own counsel. Although one subsequently learned that there were huge antecedents—that has happened—the case could not be reopened.
 There is always the risk that the court might get it wrong. Apart from antecedents, it could be that the court is in ignorance, for example, of the fact that the defendant has been receiving psychiatric medical care and that the psychiatric assessment made elsewhere in the country is that that person is very dangerous. The risk always exists, but at some point one has to bring down the barrier and say that the decision has been made and the sentence has to be based on the available information. 
 I do not find the fears that are being expressed sufficiently great to drive a large coach and horses through the principle behind the schedule, which is the desirability of encouraging defendants to plead guilty in the magistrates court at the earliest opportunity or to accept summary trial and the jurisdiction of the magistrates court, and not to clog up the Crown court with minor offences.

Stephen Hesford: May I ask the hon. Gentleman to look at the matter differently? This is not a matter of principle, it is a matter of practice. He is saying—and we all agree—that we should not clog up the Crown court. If we do not want to do that through having what he describes as a coach and horses, might it not simply be because of the exceptions of which my hon. Friend the Member for Stafford has spoken? Should we not give magistrates guidance on the exceptional circumstances, so that they do not use the procedure at a point at which it should not be used? It is practice, not principle.

Dominic Grieve: Perhaps it is my fault for having tabled the amendment and not done the research—although the Minister has not been able to help us—but I do not know how many either way offences come into the category within section 204, or what they are. My anxiety is that, because of the way in which we have created specified offences and looking back on our previous consideration of dangerous offenders, they might turn out to comprise rather a wide group. If that happens, it will be an open invitation to magistrates to break their pledge.
 We have designed a system to ensure that an individual will be tried and sentenced in the magistrates court, and that there is certainty as to the upper limit of the sentence. However, we shall have magistrates saying, ''Thank you for that guilty plea. We are terribly sorry, but we are now going to send you to the Crown court for sentencing.'' The laudable intention behind the schedule will be negated. I understand the fears expressed by the hon. Member for Wirral, West (Stephen Hesford) and by the Minister but I do not think that they are real. 
 In the circumstances, I do not form the impression that the Minister has been fully briefed on the background intentions of the civil service draftsmen in respect of leaving in the power. I wish to put the amendment to a Division to mark my disagreement, but I remain open to persuasion subsequently. The Minister can write to me. 
 Question put, That the amendment be made—
The Committee divided: Ayes 4, Noes. 12.

Question accordingly negatived.

David Heath: I beg to move amendment No. 1003, in
schedule 3, page 161, line 14, leave out 
 'may, but need not,' and insert 'must'.
 The amendment is a variation on the usual may-must debates. It raises a serious point. The hon. Member for Beaconsfield talked about driving a coach and horses through schedule 3, but I do not claim that the amendment would do that. It would be along the lines of a pony and a small gig, or perhaps a pig in a barrow. The thrust of schedule 3 is to avoid uncertainty and matters going to the Crown court that need not be dealt with there and that can be dealt with safely in the jurisdiction of the magistrates court. Magistrates will assess at the initial stages whether their powers of sentencing are sufficient and reach a preliminary view about what sentence they are likely to impose on a finding of guilt. 
 There is provision within the schedule for the defendant to request from the bench an indication whether it is likely to impose a custodial or non-custodial sentence, so that he can decide whether to elect for a Crown court committal, so it is bizarre that the bench will have the ability to say that it has reached a view, but that it will not tell the defendant what it is. That seems perverse. I cannot see the benefit of such a provision. If we are to have clarity in the system, so that everyone knows where they stand and what the likely consequences will be, it is appropriate either that everyone is left in the dark about whether they will receive a custodial or non-custodial sentence, or that their requests are answered. 
 It seems perverse to allow people the capacity to make the request, but for there to be no requirement on the court to answer that request. It will have the effect of defendants being advised to opt for a Crown court committal in cases in which they might not otherwise have done so. That is contrary to the intentions of schedule 3 and contrary to the Government's intentions, which we broadly support. I am normally greatly in favour of discretion for 
 magistrates courts, but it seems odd to leave the decision to the discretion of the court. Perhaps the Minister can explain in which circumstances he would expect the bench not to make such an indication, and whether it would be required to give any reasons for that.

James Cran: I am hearing two conversations in the Committee. Could the other conversation that is taking place take place out in the Corridor?

Humfrey Malins: I rise to support the amendment, which seeks to insert ''must'' instead of ''may''. It seems silly to have a provision that says:
''If the accused requests an indication of sentence, the court may, but need not, give such an indication.''
 There are many court centres in London in which four, five, six or seven courts are sitting at once. Lay magistrates staff some, and district judges others. It would be difficult for a defendant to face a tribunal quite uncertain about whether the court will give an indication as to sentence, given that the practice is bound to vary so much if the discretion is allowed. 
 Some lay magistrates might always say, ''No, it's not our practice to give an indication as to sentence.'' Some district judges, perhaps with more experience, might always give an indication of sentence because it is their practice to do so. Where is the fairness for the defendant, who might find himself before one tribunal or another, completely by accident, through the listing systems? The contrary may be the case. The lay bench might be prepared to give an indication, but the district judge might not be prepared to do so. However, it is surely silly simply to say: 
''If the accused request an indication of sentence, the court may, but need not, give such an indication.''
 The question arises of in what circumstances the court should give an indication. Perhaps the Minister can outline those to us. What happens if the court refuses to give an indication and the defendant presses the court through his counsel for a reason why? Is the court obliged to give reasons?

Stephen Hesford: With his experience in such proceedings, which is considerable and valuable, is the hon. Gentleman saying that in every lay magistrates court somebody could reasonably ask that court to give an indication of sentence, and that that would be a satisfactory way of proceeding throughout the country? I submit that it would be a recipe for disaster if every lay magistrate had to give indications for sentence.

Humfrey Malins: I understand what the hon. Gentleman is saying, but surely he accepts the point that making that a power but not a duty is the worst of all worlds. One lay magistrate will say, ''Yes, I'll give an indication,'' and another lay magistrate will say, ''No, I won't give an indication.'' However, the defendant coming into court at the beginning of the day does not know whether he will appear before a lay magistrate of experience, or a lay magistrate of no or relatively little experience. Until he arrives at court and sees the list, the defendant does not know whether he is before a district judge or a deputy district judge. In practice, his counsel will surely say to him, ''Now look, we had our plans today to get an indication of
 sentence, but you're in court 3. My judgment is that court 3 aren't going to give an indication of sentence, but we'll get your case slipped into court 2.'' That is quite easy: in practice, one would simply say to the usher, ''Can you move me to court 2? I don't like the look of court 1,'' or, ''I know the magistrate too well.'' Those interchanges do take place.
 I tell the Minister that the provision whereby the court might or might not give an indication is unsatisfactory. A court that gives an indication of sentence is doing the defendant a favour because he can then proceed with some certainty. A court that does not is not doing the defendant a favour, and he is not proceeding with any certainty. 
 What are the criteria to be? On what basis would a court give an indication of sentence, and on what basis would it not? My judgment is that full-time judiciary, district judges, will always give an indication of sentence if they are asked. I cannot think of a situation in which they would not, because their purpose is the smooth administration of justice. However, a lay bench might take a different view. It is not fair to have a situation in which one set of proceedings happens in court 1, another in court 2, another in court 3 and another in court 4. That would be a lottery and not sensible. There are no circumstances in which the court would not be prepared to give such an indication—can I press the Minister on that point? 
 Looking briefly, although perhaps I should not, at subsection (7), 
''If the accused indicates that he would plead guilty''—
 I do not think that the word ''would'' is very happy there. ''Intends to plead guilty'' is much better.

Hilary Benn: There is general agreement with the principle that by providing as much information as possible to defendants we can encourage them to make a decision about where they wish to be tried. I have listened with interest to the debate. When Lord Justice Auld considered the issue, he felt that it was not possible to state that there would always be circumstances in which it would be possible to give an indication of sentence. Although I recognise, in relation to the magistrates court, that it is possible to refuse to give the broad indication that the Bill permits, it is certainly the intention to encourage the magistrates to give a sentence indication when it is practical to do so. The only circumstances in which they would decline to do so would be those in which there was insufficient information.
 I accept that in practice a refusal to give a broad indication—in the magistrates court, that would mean custody or not—might be interpreted as tantamount to informing the defendant that he faces a custodial sentence.

Dominic Grieve: This brings us back, in an odd way, to our discussion on the earlier amendment about the anxiety that if one commits oneself, one will not subsequently be able to step back. There is a danger that magistrates will take the opportunity not to give indications. The reticence within the system will defeat the laudable objective of the clause.

Hilary Benn: The hon. Gentleman makes a fair point. The whole purpose is to encourage magistrates to do precisely that. If the consequence were to be as he describes, it would defeat our objective.
 I would like to reflect on this a little further. We all want to achieve the objective, but it is a question of going back to what Lord Justice Auld said in coming to his view. It should not be a duty in all circumstances to provide an indication, because it might not be possible. I undertake to consider further whether there is a way of resolving the matter in the spirit in which the debate has been conducted.

David Heath: I am grateful to the Minister. I was contemplating pressing the matter to a Division, but he is clearly prepared to reconsider. It is a serious matter. The point made by the hon. Member for Woking about having a consistency of approach and not ending up with a two or three-tier magistrates court system for which different criteria apply is important in itself. In circumstances in which there is insufficient material or information to provide a reply to that question, the magistrates have probably had insufficient information to make their initial assessment, and therefore the one is concomitant with the other.
 Equally, if magistrates have been able to make an assessment as to the appropriate place of trial, they will have had sufficient information to give at least an idea of their intention in respect of sentence. If lay magistrates do not feel equipped to do that, they should be given the support and advice to enable them to do so. If that is part of the process envisaged, should not there be one system across the country? There should not be one process for Horseferry Road and another for a place out in the sticks where no one is assumed to be able to make an effective judgment as to what they intend to do. 
 The Minister has been very helpful in his response. He has undertaken to think about the matter, and we also would do well to reflect on the issue, and perhaps consider it again later. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 1004, in
schedule 3, page 169, line 28, at end insert— 
 '( ) if it is in the interests of justice to do so'.
 The amendment deals with sending cases brought against children or young persons to the Crown court. Under the previous amendment, I was trying to reduce the discretion available to magistrates, but under this one I am trying to widen it. That is my normal intention, except when it is not in the interests of justice to do so. I am specifically asking that magistrates be given the discretion to follow the dictates of the interests of justice in circumstances that are not explicit in the conditions listed in new section 51A(3) in schedule 3 if there is a good judicial reason for a young person's case being sent to the Crown court. 
 It would be idle to speculate on the circumstances in which such a provision might apply, but I would hate 
 there to be a fetter on the discretion of magistrates courts that prevented them from, in some circumstances, considering what would be in the interests of justice as it relates to young people and children who, as I think we all agree, require special consideration in relation to judicial processes. If, when all matters are taken into account, a case would be better dealt with at a Crown court, magistrates should have the ability to send it there, irrespective of the general thrust of schedule 3 and the way in which disposals are indicated. 
 This is the sort of amendment that the Minister has rejected previously on the basis that everything is always done in the interests of justice, and I suspect that his argument will be similar in this case. New section 51A(3) provides for specific conditions, and there is no general condition included. I ask him to consider whether this is a case in which a spare-part provision to allow an overriding discretion to the magistrates might be appropriate.

Hilary Benn: The hon. Gentleman does indeed anticipate my argument in every respect. First, if we wanted to add references to the interests of justice, the easier thing to do would have been to have a kind of preamble, although I know that there is no legislative provision for doing so. Nothing in the Bill should be interpreted as being other than in the interests of justice. If that had been understood, we would have got many of the debates out of the way right at the start, but I am sure that parliamentary counsel would have told me that it was wholly inappropriate.
 When I read the amendment, I was not entirely clear whether the hon. Gentleman intended it to apply to all of subsection (3) or only to subsection (3)(d).

David Heath: I intended it to be an additional condition that could be applied under subsection (3).

Hilary Benn: In relation to subsection (3)(a) and the offence of homicide, I find it hard to conceive of circumstances in which it would be in the interests of justice for such cases not to be sent to the Crown court. However, the rationale behind the new section to the Crime and Disorder Act 1998, which is added by paragraph 16 of schedule 3, is that it should set out with clarity all the circumstances in which cases involving young defendants should be sent for trial to the Crown court. If we have missed any circumstances, we would certainly wish to add them, but I am not persuaded that a catch-all provision of the sort advanced by the hon. Gentleman would itself be in the interests of justice.

Dominic Grieve: I confess that when first reading the amendment I was slightly unclear—I remain so—whether the words
''if it is in the interests of justice to do so''
 are supposed to qualify an offence of homicide so that it must still be in the interests of justice to send it to the Crown court, or whether it would add an extra provision that meant that any offence might be so treated if it was in the interests of justice to do so.

David Heath: I thought that I had just answered that point. I intended it to be an additional condition under subsection (3), so that if the magistrates believed that
 the interests of justice would best be served by a young person being sent to a Crown court they could do so for any offence, outwith the other strict conditions.

Dominic Grieve: I apologise to the hon. Gentleman if I did not properly follow his clarification. Now that I understand, I find myself thinking that he is wrong. The wide power that that would give the magistrates would be completely unnecessary. That brings us back to the question of why we have two potentially different systems of trial in the magistrates court and the Crown court. That is particularly so with children and young persons, where the clearly established principle is that the trial should normally take place in the more informal setting of a juvenile court. The amendment is unnecessary—indeed, it is rather undesirable.

David Heath: I sense that I do not carry the Committee with me. Under heavy fire, I think it best to retreat and regroup—which I intend to do. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That this schedule be the Third schedule to the Bill.

David Kidney: Notwithstanding the disagreement a few minutes ago over the committal procedure for dangerous offenders who might be the subject of extended sentences, I want to thank the Minister for agreeing eventually to include a provision about magistrates not sending cases to the Crown court for sentencing when they choose to deal with the trial themselves. I promoted something similar in the previous Parliament, when I moved an amendment on Report to the ill-fated Criminal Justice (Mode of Trial) (No. 2) Bill. I called it the Scottish amendment, because that has long been the practice in Scotland. At the present rate of committals for sentence, I am certain that such a measure would save the Crown courts from having to deal with thousands more cases a year.
 In congratulating the Minister on his move, I point out that some say that his decision, together with giving magistrates extended powers of sentencing, will mean more people being sent to prison rather than fewer. I ask him to confirm that he is very much focused on that not being a perverse outcome of such a welcome measure.

Dominic Grieve: As the Minister understands, we welcome schedule 3 and its intention. I had forgotten the role that the hon. Member for Stafford played in promoting this in the Criminal Justice (Mode of Trial) (No. 2) Bill. It was unfortunate for him that it was tagged on to such a bad piece of legislation. I remain concerned about the fate of this piece of legislation as it also contains provisions that tinker with jury trial—provisions that will have to pass the scrutiny of their Lordships before the Bill can be enacted. Nevertheless, it has a better chance of getting on the statute book than the Criminal Justice (Mode of Trial) (No. 2) Bill.
 The hon. Gentleman is also right that one of the consequences of such a change, allied to the increase in the sentencing powers of magistrates, may well be a greater tendency to send people to prison. That is not 
 the intended outcome of the Bill—the original intention was that the magistrates should exercise their jurisdiction more frequently in areas that fall within their competence. That remains a matter of concern, particularly as custody plus and custody minus will not be introduced at the same time as the increase in magistrates' sentencing powers. However, that does not detract from the value of schedule 3, which I hope will work well and will ensure, as the Minister said, that the Crown courts are not clogged up with trivial offences that can properly be dealt with elsewhere.

Hilary Benn: I am grateful to my hon. Friend the Member for Stafford for his kind words. I claim no credit whatever for this. Rarely has schedule 3 brought such happiness to a member of the Committee. I, too, am glad that he reminded the Committee of his involvement with the Scottish amendment, which obviously has the support of the whole Committee. We debated the potential effect on the prison population at some length. We have yet to take final decisions on the phasing in of custody plus and custody minus and on the increase in magistrates' sentencing powers. I draw the Committee's attention to the new range of community disposals that form part of the Bill, and to which we are very attached, not least because they have proved successful in reducing reoffending. That is what the Bill is intended to achieve.
 An example of that is the figures on juvenile offender reconviction that were published this morning. The figures—the second set that we have had—show that the youth justice reforms have brought about a reduction of 22.5 per cent. in the reconviction rate, building on a 14.5 per cent. reduction in reconvictions that was shown in the first cohort. That demonstrates that by making more imaginative and rigorous disposals available to the criminal justice system, one can reduce reoffending. 
 Question put and agreed to. 
 Schedule 3 agreed to.

Clause 49 - Meaning of ''terminating ruling''

Harriet Harman: I beg to move amendment No. 940, in
clause 49, page 31, line 37, leave out from 'termination' to end of line 41 and insert 
 'or stay of proceedings for the offence, or one or more of the offences, included in the indictment'.
 This is one of my cameo appearances, which is how I believe they are described at the Oscars. The Government and the Opposition have tabled several amendments to part 9, which comprises clauses 49 to 61. The clauses have a very simple objective: to give the prosecution an opportunity to appeal against judges' terminating rulings. It is a simple objective, but, as I expected, the diligent and experienced Opposition team have smoked out the matters of concern in these clauses. 
 First, there are issues of principle, secondly there is the issue of whether the measures will work in practice, and thirdly there is an issue surrounding which rulings 
 should be covered. I hope that that indication about the themes that we will deal with will be helpful at the outset. 
 Like the other Government amendments, amendment No. 940 has a technical flavour, but it does not alter the fundamentals of the scheme. We will discuss those matters later. As hon. Members will be aware, part 9 will provide prosecutors with a new interlocutory right of appeal against terminal rulings made by a judge. The amendment will ensure that the definition is sufficiently wide to cover rulings that are envisaged. Such rulings may either be what one might describe as formally terminating, in the sense that the judge might bring the proceedings to a close without any intervention on the part of the prosecutor, or they may be de facto terminating—terminating in practice—in the sense that the prosecutor might regard a ruling as fatal and would, but for the right of appeal, abandon the proceedings by offering no evidence or no further evidence. Although such proceedings might not in themselves be terminal, they might be described as fatally weakening. 
 The first category of rulings is defined in clause 49, which explains that a terminating ruling would bring the proceedings to a close without any intervention on the part of the prosecutor. We had to define a terminating ruling in that way because judges may make a wide range of terminating rulings and we did not wish inadvertently to miss any out. The amendment fine-tunes the definition, and it addresses our concern that the current definition of a terminating ruling might be interpreted as excluding rulings that stay the proceedings. That is something about which the Opposition are concerned. The amendment makes it clear that stays are included in the definition and can therefore be appealed against.

Humfrey Malins: I am grateful to the Solicitor-General for her introductory remarks. Some of the Opposition amendments that we will deal with in due course are principally probing amendments. However, the first point that she made clarified the position that a stay is now, without doubt, defined as a terminal ruling for the purposes of the relevant clauses. We may now be bringing a stay in as one of the rulings that could terminate proceedings, and I want to question her about that.
 There are various rulings that a judge can make that would bring a case to an immediate conclusion without further intervention of any kind from the prosecution. A typical example, which I suspect that we would all agree is the most usual, is a ruling of no case to answer. Perhaps we will move on to that matter in later debates. Of course, when there is no case to answer, the case is over, the prosecution does no more—indeed it can do no more—and that is the end of the matter. Another example is a stay on the grounds of an abuse of process. Such a ruling would bring a case to a conclusion. Those are less frequent than successful submissions of no case to answer, but they are none the less important. 
 Committee members may not know what is a stay of process or an abuse of process. I have come across one example where the prosecution's principle evidence was a videotape taken at the scene of the crime. The offence was violent and took place in the street. It became apparent only at the trial that there was a video of the whole event. The prosecution had not produced the video for the defence and at least one witness said that the defendant was not involved but was an innocent bystander who watched, but did not participate in, the punch-up. It was plain to the court, and admitted by the Crown, that the prosecution had been negligent because it had not sought out the video. In a similar case, the prosecution had sought out the video, found that it was helpful to the defence but lost it and did not hand it to the defence. In such a case, the court will hear a submission from the defence that an abuse argument should take place and that proceedings should be stayed. 
 My initial point for the Minister is that we should be careful not to interfere too much with judicial discretion because judges will otherwise make a series of rulings that will be increasingly subject to a challenge by the Crown as legislation develops over the years, which would lead to practical difficulties and consequences. I tell the Minister—cautiously at this stage because there will be further debates on the subject later in the day—that the abuse argument is an important tool at judges' discretion to stay proceedings for various reasons that generally reflect on the credit of the prosecution. The introduction of a measure that can be appealed against is bold, but I hope that he understands that I have the gentlest of worries, at this stage at least, about widening too much the different terminating rulings that can go to appeal. I do no more than lay the ground for later discussions.

David Heath: I am sure that I am stepping into a field that contains technicalities of which I am unaware. As a non-practitioner, it is almost certain that I shall be told that I am misdirecting the information that I have.
 I am grateful to the Solicitor-General for her letter of 20 February that gave examples of possible rights of appeal if a case is terminated. Will the examples be considered? A couple of the examples involved a judge who required disclosure of identity after which the prosecution felt unable to proceed with evidence either on the basis of a public interest immunity defence or because an individual might be put at risk. 
 I examined the clause carefully and I read the words 
''without any further action by the prosecution''.
 In that instance, it is the prosecution's decision that they can no longer provide evidence, rather than a judge's decision. A decision by a judge does not inevitably lead to the prosecution concluding that they can no longer give evidence—I hope that I make myself clear. I am not sure whether that would be defined as a terminating ruling, because there is a two-stage process. 
 It is not inevitable that the identity of an informant or evidence that the prosecution believe to be covered by public interest immunity cannot be disclosed because the prosecution decide whether they can no 
 longer provide evidence. I ask, in ignorance, whether that would come within the meaning of a terminating ruling as it applies in the clause, given that the prosecution decide whether they are prepared to continue with the case after a judge's ruling. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.